Restricting mandatory overtime is a win-win-win for patients, nurses and government. It will improve nursing recruitment and retention efforts, patient care, and save money by reducing costly overtime.

Here are answers to frequently asked questions about this groundbreaking legislation:

Q: Why are nurses forced to work overtime? And why is legislation necessary (why not address it via collective bargaining)?

There are two primary reasons why nurses are required to work overtime, and why a legislative approach is needed to address it.

First, employers are able to routinely use mandating as a staffing tool due to gaps in the Employment Standards Code and the Regulated Health Professions Act. Under the RHPA and related legislation governing nursing colleges, employers manipulate the intent of college regulations such as the Duty to Care in order to force nurses to work overtime. If nurses want to decline for whatever reason – such as fatigue and concerns about their ability to ensure safe patient care – employers threaten to report them to their licensing body, which could be grounds for investigation and/or discipline. This is unfair because nurses should not be required to work overtime, especially due to the fact it is an employer’s responsibility to ensure safe staffing levels without relying on mandating.

The Employment Standards Code does prescribe specific situations for when an employer may be able to require an employee to work overtime. However, as it is currently written, it does not adequately take into consideration the nursing sector. The proposed amendments ban employers from using mandating to fill vacant shifts that are identified in a master rotation schedule or in response to routine events that could have been reasonably anticipated and planned for by an employer. It also clarifies that nurses may only be mandated during exceptional circumstances, and only when an employer could not have reasonably anticipated and planned for such an event.

Second, legislation is necessary for restricting mandatory overtime for all nurses, and for improving patient care and workplace health & safety standards across the province, regardless of each collective agreement. Collective agreements are limited in scope and duration, and therefore can be amended during future bargaining processes and do not cover all nurses working in the province. Moreover, because this is primarily a patient care issue, making it law will ensure nurses represented by other unions, as well as agency nurses, are protected from mandating. This will improve care outcomes for all patients, and means all nurses will have a right to decline overtime without fear of reprisal from their employer or licensing body.

In scope, the primary cause of mandatory overtime is negligent hiring and scheduling practices. Increasingly, mandating is used as a routine staffing tool to cover scheduling gaps – such as vacations and maternal/paternal leaves – that could have been avoided with appropriate planning. Due to widespread vacancies in programs and facilities across Manitoba, employers often rely on mandatory overtime to fill vacant shifts. This is creating a negative feedback loop, and needs to stop.

It’s also worth there is nothing in the current MNU collective agreement that allows employers to use mandatory overtime as a routine staffing tool. Moreover, the Pallister government has refused to come to the bargaining table for nearly three years. The current MNU collective agreement expired in March 2017, and although the terms of that agreement continue to apply until a new contract is negotiated, the Pallister government has effectively blocked the ability of MNU to negotiate related issues through the bargaining process.

Q: Mandating has existed for a long time. Why is this legislation needed now?

It’s true that mandating is not an entirely new issue. However, the scale and frequency of mandating has increased in recent years, following the Pallister government’s implementation of health care cuts and closures in the WRHA beginning in 2017. It has become an urgent workplace health and safety issue that requires amendments to the Employment Standards Code and legislation governing the nursing colleges.

Historically, mandating was primarily used as a last resort for ensuring safe staffing levels during exceptional circumstances, such as public health emergencies or surgeries. However, employers are increasingly using it as a scheduling shortcut, and by threatening to report nurses to their respective licensing college if they do not accept overtime. By citing the Duty to Care regulation, employers can force nurses to work overtime by accusing them of otherwise not meeting their professional standards, regardless of the fact employers are responsible for scheduling and ensuring safe staffing. As a result, a legislative approach is required to ensure that employers cannot manipulate college regulations or the Employment Standards Code in order to force nurses to work overtime.

Q: How common is it for nurses to work mandatory overtime?

Unfortunately, employers do not readily share data on the number of mandatory overtime incidents or hours worked in each facility and program. As a result, MNU has access to limited data obtained through Freedom of Information Requests (FIPPAs) and voluntary reporting by nurses.

Nurses have been increasingly reporting incidents of mandatory overtime to the union over the past two years. At St. Boniface Hospital, nurses voluntarily report and track incidents of mandatory overtime, thereby providing a quantitative measurement. In 2017, before most of the major health care changes in the WRHA took effect, nurses reported 328 incidents of mandatory overtime for the entire calendar year. Reported incidents increased by 475 per cent to 1886 in 2018. In 2019, nurses have reported a decline in the number of incidents, however mandating remains 200 per cent above 2017 levels. As of November 30, nurses have reported 977 incidents at the hospital in 2019.

MNU does FIPPA overtime statistics from health authorities; however, these data sets include voluntary and mandatory overtime. These statistics show a general increase in overtime in programs and facilities across Manitoba. In particular, the WRHA has seen a substantial increase in the amount of overtime since 2017.

If your workplace has an issue with mandating, we encourage you and your nursing colleagues to start reporting and tracking each incident. Contact your Labour Relations Officer for assistance in establishing a formal tracking system.

Q: Is mandating primarily a WRHA issue?

Mandating is common in programs and facilities across Manitoba. The case of St. Boniface Hospital raised public awareness about the issue, and combined with recent cuts and closures in the WRHA, media coverage has focused primarily on the impact in Winnipeg hospitals. However, nurses are reporting a rise in mandatory overtime in rural and northern regions too, as well as long-term care and public health sectors. It’s a problem affecting nurses throughout the province, and has been made worse by changes that have destabilized the system.

Q: Does this mean nurses can’t work any overtime?

No! The legislation does not ban nurses from working overtime. In fact, it will empower nurses to make that decision without fear of reprisal. It ensures that nurses have a choice whether to work overtime based on their rights as an employee and a licensed professional. Nurses should have the ability to decline overtime, especially if they are concerned about meeting their professional standards and feel they are unable to provide safe patient care. This legislation is all about empowering nurses to make the decision, and restricting employers’ ability to mandate.

Q: Some suggest they’d prefer to work mandatory overtime rather than work short. Are they right to be concerned about this legislation?

No! This legislation is not a choice between working short or banning mandatory overtime. It is a solution to the root cause of both issues. The legislation is intended and designed to ensure employers are providing for safe staffing levels, and no longer have the ability to use mandating as a shortcut for filling vacant shifts. The legislation will greatly reduce the likelihood a nurse will be forced to work short because it requires employers to employ better human resource practices that will help retain and recruit nurses. In turn, this will reduce staff turnover, burnout, sick leave and improve employee morale, all of which are critical for stabilizing and growing the nursing workforce.

It’s important to note that this legislation takes a phased-in approach. If passed, restrictions on mandating would not come into effect for up to two years. This will provide government and employers time to fill vacancies and adjust hiring and scheduling practices to ensure mandating is no logner used as a routine staffing tool.

Q: How are we going to pay for it?!

The answer is simple: it will SAVE money! Restricting mandatory overtime is a cost-saving exercise, and should not necessarily require additional investment beyond what is allotted in the current health care budget.

Nurse vacancies and short staffing levels are the underlying cause of mandating. Vacancies are positions accommodated within the existing Health budget. After all, a vacancy is an existing position already posted by an employer, who would have received approval to post that position from the health authority and the Health Minister based on the current Health budget. The choice is to fill these vacancies through mandatory overtime, or by hiring more nurses into the system. Financially, it is much more cost-efficient to hire more nurses to work straight time rather than forced ovetime, which increases costs for each shift by 50 to 100 per cent (50 per cent for regular OT, 100 per cent for double time).

Q: The Pallister government says it’s hiring 200 more nurses, and that OT and vacancies are declining from 2018 levels. Is that good enough?

It’s not good enough! Here’s why: If this is true, it should be creating conditions that should incentivize the government to pass the legislation. Why would the government want to allow mandating to be used as a routine staffing tool if it’s making significant progress in addressing nurse vacancies and overtime? As vacancies are filled and more nurses are hired into the system, the government should want to end mandatory overtime as a routine staffing tool for patient care reasons and financial savings. Mandating should only be used as a truly last resort because it puts patient and staff safety at risk and increases costs. Filling vacancies should gradually reduce the need mandating and therefore incentivize the government to pass Bill 205 to ensure employers are optimizing staff and resources.

Moreover, implementing restrictions on mandatory overtime should assist with recruitment and retention. This will help employers fill existing vacancies, and assist with additional recruitment for the creation of promised new nursing positions. It would also incentivize specialized nurses to continue working or return to working in programs that have been disrupted by the consolidation and experience(d) significant mandating. Like any other profession, mandating reduces the incentive of nurses to take jobs in facilities or programs most impacted by it. Eliminate it as a staffing tool, and more nurses will be willing to work in those facilities and programs.

Mandating is a patient care issue, a workplace health & safety issue, recruitment & retention issue, and ultimately makes baseline staffing more expensive. Banning it is a win-win-win for patients and nurses AND government!

Q: This legislation may be the first of its kind in Canada. Has it worked elsewhere?

Yes, this bill is based on best practices employed in other jurisdictions. In particular, Bill 205 is modelled after legislation passed in New York state that restricts mandatory overtime for nurses. The New York State Nurses Association (NYSNA) lobbied aggressively for the legislation because nurses knew mandating was linked to short staffing as a result of employer and government negligence. Employers were mandating nurses due to short staffing, and this created a negative feedback loop by damaging nursing recruitment and retention. The NYSNA understood that the solution was to make it illegal for employers to use it as a routine staffing tool.

The first version of the NY law was passed in 2009, and amendments have been made to ensure the law is responsive to the nursing profession and the health care sector. Including New York, 18 U.S. states have passed legislation restricting the use of mandatory overtime for nurses to great effect, citing patient and staff safety concerns and reducing the need to pay out costly overtime. Click here for a summary of U.S. laws restricting mandatory overtime for nurses.